Welcome, Doug — thanks so much for being here today to discussing the Sotomayor nomination, the constitution and the rule of law — and the importance of balance in the federal courts.

Looking forward to the discussion.

Doug, one thing that I have found particularly troubling is how frequently the media has run with a gross mischaracterization of Sotomayor’s record. They appear to be taking right-wing talking points at face value rather than digging into her actual record — including her voluminous opinions from the last several years — and verifying this for themselves.

Has there been any particular issue that’s come up since the nomoination that has struck you in particular as being either unfair, misleading or just an outright falsehood?

Also, I’d love it if you could talk briefly about what CAC’s mission is and what you all have been working on most recently. I think folks would appreciate an introduction.

Welcome, Mr. Kendall.
And thank you Christy for hosting today!

Doug is having a little bit of a technical glitch — will be on momentarily, gang. Thanks so much for your patience.

More than happy to do so. Thought we could all use a walk through discussion — again — on why these issues are important for all of us. A lifetime appointment to the federal bench is not something any of us should take lightly.

Thank you, Doug, for joining us–and, thanks Christy, for hosting.

There was some discussion here yesterday about the relative merits of lifetime appointment vs. one long (say, 12 year) term for SCOTUS–do you think that this might be part of the Constitution that needs a tweak?

Thanks for having me.

I’ll answer Christy’s first question first.

Regarding Sotomayor, the main problem is there’s been an exclusive focus on a very narrow set of issues, when Judge Sotomayor’s record is vast and incredibly impressive.

So glad you could make it, Doug — I know this is the busy season for you all with a pending SCOTUS nomination and so many pending appellate cases you all are working on at CAC.

Regarding CAC, our mission is to “shake up” the debate about the Constitution and the law. Our argument is simple, the text and history of the Constitution matter a lot, and they favor progressive, not conservative, outcomes over a broad range of issues.

Regarding life tenure,

I think the work Justice John Paul Stevens has done over the past decade is the best argument I can imagine in favor of life tenure. Justice Stevens has through his experience and stature had an outsized impact, and been able to secure a majority for progressive outcomes in a large number of areas.

Thanks to you both, Mr. Kendall and Christy for your time today.
I’m particularly interesting in hearing the answer to CHS’s question:
What is the difference between a “conservative,” a “moderate” and a “progressive” legal philosophy? What does it mean for the average American if one or the other dominates our courts?
Some of these terms seem to have shifted in meaning recently.

Mr. Kendall, does it appear to you that we have gone from nominating and confirming justices that tended towards a political bent, to nominating and confirming doctrinaire ideologues?
Or am I just too young to have a picture of this?

Have you found that you are getting much traction with the progressive side of the message? It always seems to me that so many media bookings are for Federalist Society types, and so few are for our end of the spectrum.

It can be tough to interest the general public in legal issues, what’s been the most successful for you all thus far?

To answer demi’s question

The main difference between conservatives and progressives, from our perspective, concern the importance of the Amendments added to the Constitution over the past 200 years. Conservatives like Justice Scalia think these Amendments have simply tinkered around the edges of our Constitution. We think they’ve changed the document in profound ways that have yet to be appreciated by the Supreme Court. It’s not really a difference of philosophy, rather, it’s a fight about the meaning of the Constitution.

To newtonusr,

I certainly don’t consider Judge Sotomayor an ideologue or doctrinaire nominee. From our review of her record, she’s a really careful jurist who falls on the moderate side of the judicial spectrum.

Doug — on that “originalist” bent of Scalia and others, it always seems to me that vein of argument runs contrary to the original Founding intent as expressed in the back and forth between the Federalists and Anti-Federalists.

The inherent tensions between competing interests and need for changes and further tinkering have been bedrock issues in the nation since even before its founding. I don’t know how they can simply dismiss that outright without a substantial slight of hand.

I think we’re learning more about Chief Justice Roberts and Justice Alito every term, and the news is not very good. Particularly if they are willing to strike down a central portion of the Voting Rights Act (which they may well do later this month), they will reveal themselves as very aggressive, conservative justices who are willing to distort the Constitution to advance an ideological agenda.

Thanks, and wow, quite an answer. Scalia does not see the potential harm done, or the opportunity for applying the law in more progressive ways?

Christy,

From our perspective, the main problem with Scalia’s originalism is that he appears to want to go back to the original 1787 Constitution, without fairly taking into account the Amendments, in particular the revolutionary amendments passed under the Civil War, which changed the fabric of our Constitution. We do have a living Constitution, at least to the extent that we’ve changed it 27 times over the past 220 years.

Original intent and judicial restraint only can be invoked against liberal positions, no matter how much they vary from a plain and clear reading of the Constitution. Look at Scalia’s decisions in the Washington DC 2nd Amendment guns case where he twisted the language of the amendment until it agreed with his position and then he had to dial it back because his own finding would have let mentally disturbed people keep nukes in their backyard.

And I recently wrote on Montejo where Scalia simply ignored the clear language of the 6th Amendment with its guarantee of effective legal counsel and used Miranda in which he doesn’t even believe to do it.

Original intent and judicial restraint are hooey.

In response to demi,

To his credit, there are some fairly narrow areas where Justice Scalia has followed his originalist method and reached a surprisingly progressive result. But in major areas he seems to ignore overwhelmingly convincing text and history that pushes in a progressive direction.

Mr. Kendall, thanks for your time. My question pertains to the Supremes and Federal courts in general, as opposed to Judge Sotomayor in specific, but I think plays into the larger question on the state of the judiciary.

Recently in Ashcroft v. Iqbal, the Supreme Court announced a heightened (supposedly) standard for pleading of claims against the government/sovereign under Rule 8 in relations to 12(b)(6) challenges thereto. Is there any reason that Iqbal doesn’t apply to generally any claim against the government, especially in light of its foundation on Twombley? I am most interested in terms of claims brought under FISA and the ECPA such as are at issue in front of Vaughn Walker in NDCA, but it would appear to me that Iqbal is going to be applied prophylactically to pretty much any claim. (I will have to note, that as plaintiffs civil rights/section 1983 attorney, I have always felt the relative standards of Iqbal were being applied to my cases, just now there is official cover for district trial judges).

Any thoughts?

To Hugh

Original intent and judicial restraint are two completely different ideas. Justice Thomas, the only member of the Court who purports to follow “original intent” (albeit, not very well) is by far the most activist justice on the Court, at least in terms of how many prior Court rulings he would overturn. Both judicial restraint and original intent have an appropriate role in judging; judges should look at what the Framers intended, and they should recognize the limits of their role, but both of these ideas are only one part of a good judicial approach.

Whoa, my whole question disappeared!

bmaz, I’m not sure we’re seeing your question. Would you mind clarifying?

Also in Montejo, Scalia overturned Jackson a decision written by Stevens that had been on the books for 23 years. He said this did not offend stare decisis because Jackson had not been around that long. I note that Roe has been around for 36 years. Scalia never said what his time limit was for stare decisis.

As for Roberts and Alito they simply lied at their confirmation hearings about it.

Why do you think that he would react so differently? Different issues, shorts too tight that day? I’m wondering how Sotomayor’s history of being moderate will affect future decisions.

Refresh — it’s there.

With regard to original intent and judicial restraint, you are talking theory. I am talking practice. In practice, the content of both has been debased to the point of being little more than catchphrases.

For doug’s benefit — here’s the question from bmaz:

Mr. Kendall, thanks for your time. My question pertains to the Supremes and Federal courts in general, as opposed to Judge Sotomayor in specific, but I think plays into the larger question on the state of the judiciary.

Recently in Ashcroft v. Iqbal, the Supreme Court announced a heightened (supposedly) standard for pleading of claims against the government/sovereign under Rule 8 in relations to 12(b)(6) challenges thereto. Is there any reason that Iqbal doesn’t apply to generally any claim against the government, especially in light of its foundation on Twombley? I am most interested in terms of claims brought under FISA and the ECPA such as are at issue in front of Vaughn Walker in NDCA, but it would appear to me that Iqbal is going to be applied prophylactically to pretty much any claim. (I will have to note, that as plaintiffs civil rights/section 1983 attorney, I have always felt the relative standards of Iqbal were being applied to my cases, just now there is official cover for district trial judges).

Any thoughts?

Hugh, I don’t think there should be a time limit on stare decisis. There are some awful cases still on the books from the 1870s and 80s, cases as bad as Plessy v. Ferguson, that should be overturned by the Supreme Court 140 years later. I think the best way to defend Roe, is not to say they should keep it as a matter of precedent, but that they should keep it because it’s the right answer as matter of constitutional text and history. This is one of the points made in CAC’s report the Gem of the Constitution and our corresponding posts about the report. (More info is available on that here http://www.theusconstitution.o…..#038;mid=5)

Jeebus, thank you. I don’t type that fast and I was going to try again. Okay, I am a digital idiot…..

It has seemed to me for quite a while that Justice Thomas’ opinions are much more “results’ oriented jurisprudence” than they are “originalist” in practice. But people who have clerked for him will argue that point up vociferously. *g*

bmaz, we discussed the Iqbal opinion briefly here, but I’m not sure I have the answer to your specific question. I really have no idea how broadly courts will apply the standard set in that case.

Doug — are there issues that you are hoping the Senate Judiciary committee will concentrate on in terms of questioning Sotomayor’s record? Any particular issues that concern you — or ones which you think are particularly good for her?

Can you indicate how Sotomayor would be a better choice than a solid progressive? Can you comment on why it is OK to nominate radical conservatives but not even a mainstream liberal?

Also in our last discussion on this topic, the point was made that the Court has little diversity. It is male, mostly Catholic, made up of appeals court justices that went to Harvard and Yale.

Also, looking down the road on federal bench appointments, what should progressives be doing to set the stage for even better nominees in the future?

To Christy, in response to the Thomas clerks’ view that Justice Thomas is some sort of model originalist, I think this piece in Slate, which I wrote two years ago about three Thomas opinions decided in the 2007 Term, provides a pretty devastating rejoinder.

Hugh, I wouldn’t say that Judge Sotomayor would be a better choice than “a solid progressive.” Based on our review of her work so far, I think simply, she’s a really good judge, with tremendous experience and credentials, who progressives will end up liking just fine. (I should add that at this point CAC hasn’t endorsed Sotomayor, as we never make a decision until after a nominee’s hearings.)

I remembered that piece, Doug — which was why I mentioned that about Thomas. I thought you might have a thought or two on that point. *g*

We had Jan on for a book salon around that time for “Supreme Conflict,” and had some great back and forth with her on her Thomas segments, in particular.

The Iqbal decision would appear to further the Roberts’ agenda of freezing out claims by individuals on most issues. Apparently in Roberts’ estimation if you are an individual you essentially never have standing.

Christy, your question about looking down the road is a great question. I think the White House responds to the “on the ground” political realities when selecting nominees, and the reality right now is that conservatives are more focused on this issue than progressives. I think, however, the end of Term rulings by the Supreme Court could be a real wake up call for progressives. If the Court, for example, strikes down a critical provision of an iconic civil rights law like the Voting Rights Act, which was reauthorized in 2006 by a 98-0 vote in the Senate, we should all be up in arms, and demand a judiciary that follows the progressive promise of the Constitution’s text and history.

Thank you. Actually, I can generally tie at least some of the thought into a question regarding Judge Sotomayor. First off, I very much agree with Christy on how the media has distorted the discussion of Sotomayor, her past and her record. It has been inane. It appears to me, however, that she is very protective of police power and governmental authority, and this concerns me greatly, especially considering the grabs that have been made by the executive branch (and in many cases are still being perpetuated). How do you see a Sotomayor seat on the Supremes as affecting this area of the law? This seems particularly important with the possibility of many cases initiated under the Bush Administration, notably those I previously mentioned in NDCA (such as al-Haramain and Mohamed v. Jeppesen), but many others too from the various circuits, winding their way toward the Supreme Court.

In the same vein as Christy’s #39, would you agree that the GOP strategy of packing the lower–and especailly circuit–courts with people who saw things their way was an effective means to change the judical landscape for a generation.

Do you believe that prograssives should follow a similar strtegy, really PUSH to get solid progressives on the federal bench, espically in influential circuits like the DC circuit and 2nd circuit in the hopes of dominating both the development of the natioanl jurisprudence (it’s hard for SCOTUS to overturn is all the circuits are in basic agreement about something) and dominating the likely pool of future SCOTUS nominees.

If the only Dem choices are modderats, but the GOP choices run the entire spectrum of their ideology, then the courts and the jurisprudence are bound to track tot he right, because there are no outliers on the left side of hte bench.

Or do you disagree? Please pardon my abissmal typing

You all did a brief in the Voting Rights Act case, didn’t you? Any feel for where the Court may go at this point? It’s always tough to read something like that in advance, but I thought I’d ask…

Although advise and consent is written into the Constitution, it has been years since confirmation hearings had any content. If a candidate is asked a substantial question, they will refuse to answer because it may come before the Court. If it has no content, they will blather on or give anodyne answers.

Regarding Thomas, I think perhaps the greatest test for Justice Thomas’ commitment to original intent will be his ruing on the Voting Rights Act case. The intent of the Framers of the 14th and 15th Amendments could not be more clear — they wanted Congress to have broad power and discretion to prevent racial discrimination in voting. A ruling by Justice Thomas striking down Congress’s action here would show again that on important issues he will not follow his purported method.

Cynthia, we’ve advocated strongly that President Obama appoint the next generation of brilliant legal minds to the federal bench. I will say, one thing we’ve found a little disappointing so far is the fact that so far, Obama’s only nominated sitting federal judges who are a little “long in the tooth,” so to speak. Hopefully his choices will become a little bolder as his Administration progresses. We’ve also encouraged President Obama to look outside the judicial academy in choosing his nominees to both the lower courts and the Supreme Court.

Are there particular points where pressure ought to be brought to bear more effectively? And, if so, any ideas how we can all better do that?

We’re always looking for a good action idea…

Are there potential nominees you’d liek to see but who haven’t gotten a lot of media or Beltway buzz up to now? Any names you’d like to toss out as folks you think would be great on the bench?

Christy, regarding the Voting Rights Act case, obviously questions at oral argument are always an imperfect indicator, but the fairly universal consensus among those listening to the argument was that Justice Kennedy and his four conservative colleagues were leaning toward striking down the pre-clearance provision of the VRA. As we’ve discussed above, such a ruling would be a drastic departure from the text and history of the Constitution, and should unite progressives in their focus on the future of the Supreme Court.

we should all be up in arms, and demand a judiciary that follows the progressive promise of the Constitution’s text and history

Specifically, how? Are you talking letters? marches? op-eds? How do you see this being organized and targeted?

Doug, before we get too much further along in the discussion — I just want to take a moment to thank you for being here and for all the work you all do on legal issues. It is very much appreciated.

And thanks so much for your insightful answers here, today. Please come back to FDL any time — we’d love to have you.

Adding my voice to Chrity’s #52. I would love a peek at your organization’s “short list”

I wonder if Roberts would offer the opinion to Kennedy or keep it for himself. Kennedy wrote a decent if longwinded opinion in Boumediene but his Carhart one on late term abortion was spectacular in its dreadfulness

Christy, I’d rather not toss out particular names, but I do think one under-appreciated talent pool are professors at law schools around the country. There are a lot of brilliant, young faculty members who could become powerful voices on the Courts of Appeals for decades to come, and these candidates don’t seem to have gotten the attention they deserve. This is how the last three Republican presidents have made such a lasting impact on the federal judiciary: by appointing conservative scholars such as Frank Easterbrook and Richard Posner (both on the Seventh Circuit), and Harvey Wilkinson (on the Fourth Circuit).

Late to the party.
Couldn’t the congress add to the number of justices on SCOTUS?

Completely agree with you, there. Also, younger judges at the state level as well — people who have some trial and appellate experience before they run for the bench. I’ve always thought one of the biggest strengths that both Ginsburg and Thurgood Marshall brought to the SCOTUS was their real world legal experience.

An area that I think is neglected in these discussions is property rights, environmental, and commercial law. This is also an area where I think original intent and all of its offshoots are clearly wrong. It seems to me that the court has moved in many areas towards a libertarian entitlement-contractual perspective. But when I read economic histories of the U.S., federal judges have been explicitly using cost-benefit and social justice reasoning all through US history. Economic history textbooks give extracts from the decisions where the justices clearly law out social and cost-benefit rationales (and the cost-benefit reasoning is laid out in plain English, not disguised behind mysterious technical screen)

The SCOTUS has produced some surprisingly sensible rulings in environmental law recently. But on intellectual property and patent law it has not.

Is there any broad pattern in the current SCOTUS decisions in these areas? What is Sototmayor’s approach? Any good reading you can recommend on this topic?

I would think so, but looking at this Congress would you want them to?

Christy (and readers) thanks so much for having me. This has been a lot of fun. I’ll try to answer Cynthia’s important question before I sign off.

I think, in terms of how to raise the temperature on this issue, there needs to be a coordinated response, from the Obama Administration, from Congress, from the progressive community and the blogosphere. Hopefully the Obama Administration already realizes the importance of the Voting Rights Act, and Congress appreciates the need to protect its power. But you should certainly reach out to your friends to make sure they get this message. This case could very well be progressives’ best opportunity to take back the Constitution and claim our text and history as our own.

SCOTUSblog, for one, has been doing an extensive case by case look at her record, including a number of civil opinions.

Thank you Mr. Kendall, thank you Christy!

The Mainstream Media is setting the stage for the repeal of the voting rights act. Recent polling data promoted by the MSM indicates that a majority of Americans favor repealing affirmative action. Glenn Beck, Hannity, Oreally, Limbagh and Boortz are still having a great effect on their followers.

Thanks so much, Doug, for all the back and forth today. And thanks to everyone at CAC for their work on these issues!

Thanks for sharing your knowledge and opinions. If you like cookies, I just took some snickerdoodles out of the oven.
And, boy, do we have a lot of work to do if we are committed to (re-)claiming the Constitution as our foundation.

Thanks, Christy. I have tried to read the SCOTUS blog, but for some legal topics, SCOTUS blog is too high level for me! I need something written in regular English. I will try again, they might have a new post up that is more introductory level in those areas.

Also, thanks to Doug for the vist, it has been very informative

Thank you all again for having me.

If I find anything specifically on that topic for you that I think is a good nutshell, I’ll post a link in this thread. It’s been a wee bit crazy at our house, so I’m way behind in my Sotomayor analysis writing, or I’d be able to point you to one of my own. Sorry about that!

Phoenix Woman is upstairs!
Franken-Coleman Update, 06/05/09: When Bluffers Fold

Thanks that would be great. Property rights, environmental law, corporations, etc, are areas where there have been surprizingly good but also alarming decisions coming down and it is difficult to put it all together.

What is missing for me in the SCOTUS blog is the context. About of a quarter of a good US economic history text is basically a Cliff Notes intro to SCOTUS decisions, and without that I am helpless.

Thanks so much for pointing out the Consitutional Accountability Center. That is a great resource that I did not know about until now.